Express Ltd. v The Environment Agency

This is a defendant’s appeal by way of case stated from a decision of justices sitting at Redditch who on 29^th January 2004 convicted the appellants of this offence –

“On 21 January 2002 at Express Limited’s Depot, Birmingham Road, Redditch in the county of Worcestershire Pardy’s Dairies did cause polluting matter namely cream to enter controlled waters namely Hewell Brook contrary to section 85(1) and (6) of the Water Resources Act 1991 and the offence was committed due to the act or default of Express Limited contrary to section 217(3) of the Water Resources Act 1991.”

The relevant parts of the statute read as follows –

Section 85

(1)

A person contravenes this section if he causes or knowingly permits any poisonous noxious or polluting matter or any solid waste matter to enter any controlled waters.

Sub section 6 simply renders a contravention of section 85(1) an offence.

Section 217 is entitled “Criminal liabilities of directors and other third parties.” It reads –

(1)

Where a body corporate is guilty of an offence under this Act … and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, then he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2)

Where the affairs of a body corporate are managed by its members, sub-section (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(3)

Without prejudice to sub-sections (1) and (2) above, where the commission by any person of an offence under the water pollution provisions of this Act is due to the act or default of some other person, that other person may be charged with and convicted of the offence whether or not proceedings for the offence are taken against the first-mentioned person.

For present purposes the facts can be simply stated. Unfortunately they are not easy to discern from the case stated, which is 35 pages long and consists almost entirely of a pedestrian recitation of the evidence and the arguments advanced in the Magistrates’ Court.

In early 2002 the appellants had dairy depot premises at Birmingham Road, Redditch. One of their customers was Ian Pardy, a private contractor who had several vans, and who bought milk from the appellants. The appellants also permitted him to use their premises to take delivery of cream from an outside supplier.

At about 12.15 pm on 21^st January 2002 Bob Wassell, one of Pardy’s employees, was engaged in the transfer of cream from an articulated lorry to the open back of one of Pardy’s transit vans. The cream was in a grundy, which seems to have been a somewhat unwieldy drum on wheels, and it was lifted onto the van by means of a fork lift truck. The van was deliberately parked on a slight slope so that when the grundy had been placed on the van it could more easily be rolled forward into position. Unfortunately on this occasion the grundy collided with a milk crate and toppled over. That may have been in part because the wheels on the grundy tended to stick. Up to about 10 litres of cream escaped. Mr Wassell at once notified Mr Hunter, the appellant’s assistant depot manager, and he informed the local authority, so that within quite a short time representatives of the local authority, the Environment Agency, and the Water Authority were on the scene.

Both before and after they arrived efforts were made to deal with the cream which had escaped. The van was parked, as it usually was, in an area served by surface water drains. The transfer of cream operation took place there daily, and sometimes twice a day. There were covers for the drains, and they were put in position. Mr Hunter also bought sand from commercial premises next door, and built a bund to try to stop the cream reaching the drains. When help arrived sand was used to mop up the cream and shovel it away. But not all of it was contained. Some got out into Birmingham Road, and ran along for about 20 yards. It was sanded and gathered up by council contractors who arrived about 15 minutes after the incident. More importantly for present purposes, some got into the water course, and thus into the Hewell Brook, which it discoloured ultimately for about 150 to 200 metres, as can be seen from the photographs taken by Mr Folkes-Skinner, the Environment Management Team Leader. Samples were taken, and the water authority took steps to flush out their sewer. The samples were analysed, together with control samples from upstream, and showed increased bio-chemical oxygen demand, an increased level of suspended solids and increased ammoniacal nitrogen.

When interviewed in the presence of a solicitor on 19^th March 2002 Mr Hunter said that he knew of no similar incident at the depot in the seven years of his employment, but until the day of the incident there seems to have been no sufficient thought given to the question of how to reduce the risk of a spillage, or how to prevent environmental damage if a spillage should occur, although there had been a general risk assessment.

Pardy’s were charged with an offence contrary to section 85(1) to which they pleaded guilty, and that fact was adduced as part of the prosecution case against the appellants. The prosecution also led evidence from officers of the Environment Agency, a consultant Dr Collison, and others involved in cleaning up. The appellants, having unsuccessfully contended that there was no case to answer, led evidence from Dr Plemper, who had been their environmental manager since May 2000. The justices did not accept his evidence.

Although it is said in the case stated that reliance was placed on the statutory defence to be found in section 89 of the 1991 Act, Mr Gordon QC for the appellants told us that no reliance was ever placed on that defence. Nothing now turns on that discrepancy, because it is common ground that the appellants cannot avail themselves of the statutory defence.

Undoubtedly the appellants did contend that the cream which escaped was not polluting matter for the purposes of section 85(1), that the brook was not necessarily controlled waters, and that having regard to the limited amount which escaped and their prompt reaction to the escape they should not be held liable under section 85(1) or under section 217(3).

In summary the magistrates held that –

(1)

section 85(1) is an offence of strict liability so that the prosecution need not prove intent, negligence or recklessness. They cited Alphacell v Woodward [1972] AC 824 and Environment Agency v Empress Car Co Ltd [1999] 2 AC 22.

(2)

Pollution is an ordinary English word defined in the Oxford English Dictionary as ‘to make physically impure, foul or filthy, to dirty, stain, taint or re-foul’. It is therefore not necessary to show that water is harmed to show that it is polluted – see R v Dovermoss Ltd [1995] Env L R 258.

(3)

Hewell Brook is controlled water, and the sequence of events which led to the entry of the escaped cream into the brook, as explained by Mr Folkes-Skinner, was not extraordinary.

(4)

The cream did pollute the brook. There was no harm to the water, but the photographs and the analysis of samples demonstrate the polluting effect and the possibility of harm. I return to look more closely at this part of the Magistrates’ reasoning later in this judgment.

(5)

The method of transferring the cream, by manipulating a grundy on the back of a van parked on a slope near a land drain was unsafe, and there had been no adequate risk assessment.

The magistrates have posed five questions for our consideration, namely –

“1.

Whether there was sufficient evidence on which reasonable Justices properly directed in law could conclude that Pardy’s Dairies caused polluting matter to enter Hewell Brook and whether that was controlled waters for the purposes of s.85 Water Resources Act 1991.

2.

Whether there was sufficient evidence on which reasonable Justices if properly directed on law could conclude that cream had a polluting effect and was polluting matter for the purposes of s.85 Water Resources Act 1991 and s.217(3) Water Resources Act 1991.

3.

Whether on the facts found there was sufficient evidence on which reasonable Justices if properly directed on the law could conclude that an isolated ‘de minimis’ entry of cream into controlled waters was likely or capable of having a polluting effect for the purposes of S.85 Water Resources Act 1991 and S.217(3) Water Resources Act 1991.

4.

Whether there was sufficient evidence on which reasonable Justices if properly directed on the law could conclude that the act of loading and unloading dairy products in a retail depot designed for the purpose could amount to the positive causative act required under S.85 Water Resources Act 1991.

5.

Whether there was sufficient evidence on which reasonable Justices could if properly directed on the law conclude that failure to prepare in a particular form a Risk Assessment which has no statutory basis either to exist or to exist in written form can amount to a default for the purposes of S.217(3) Water Resources Act 1991.”

It is common ground between counsel who have appeared before us that there are really only two issues to be addressed in this court, namely –

(1)

Was the commission of the offence against section 85(1) due to the act or default of the appellant?

(2)

On the Justices findings, was cream ‘polluting matter’ within the meaning of sections 85(1) and (6)?

I turn therefore to deal with the first of those two issues.

As Mr Roger Smith QC for the respondent points out, this issue was not presented in the Magistrates’ Court in the way it has been presented to us, so it is not reflected in the case stated which is not directed to it, but, as he accepts, it is a critical issue, and the case stated does contain enough material to enable us to deal with it.

Mr Gordon accepts that section 85(1) creates an offence of strict liability. There is no need to prove negligence. He further accepts that under section 85(1) a defendant can be liable if he did something which was not the immediate cause of polluting matter entering into controlled waters, provided there is a sufficient nexus between what the defendant did or failed to do and the alleged result.

But Mr Gordon submits that liability imposed by section 217(3) is different. It is additional to that imposed by section 85(1) and it is not strict liability. It cannot, he argues, simply be covering the same ground as section 85(1) or it would be unnecessary, and it is not required simply to extend the causative reach of the earlier section. Plainly in order to be liable under section 217(3) it must be shown that the commission of an offence by one person (in this case Pardy’s Dairies) is “due to the act or default of some other person” (in this case Express Ltd). That means that it is necessary to start by identifying the act or default relied upon, and, Mr Gordon submits, it is not sufficient to show that Express gave Pardy’s the opportunity to commit a breach of section 85(1).

Mr Gordon recognises that the respondent makes certain criticisms of the appellants, namely –

(1)

that they failed to make any risk assessment in relation to the cream transfer operation, either in relation to the risk of spillage or in relation to the risk of pollution if spillage should occur.

(2)

They permitted on their land a potentially hazardous transfer operation, with a somewhat unwieldy grundy being manhandled on a sloping van floor in an area served by surface water drains leading to controlled water in a brook. Although the operation was being undertaken by independent licensees Express, as landowners, had the right to prevent it from happening, or to require that it be done in some other way.

Mr Gordon submits, rightly, that there was no statutory duty laid upon the appellants to carry out any risk assessment, nor, he contends, was it their duty to prescribe where or how Pardy’s carried out their work, and in the case stated the justices did not, he submits, really address the requirements of section 217(3) as opposed to section 85(1). All they said at paragraph 6(vii) and (viii) of the Case Stated was –

“We find the unloading and loading of grundies at the Express depot on a slight slope and near a land drain, with a grundy being loaded and being allowed to roll into the back of a vehicle to be an unsafe practice. We therefore find by their default that Express Dairies allowed Pardy’s Dairies to carry out loading operations and unloading in an unsafe way and in an area served by surface water drains. From the evidence of Dr Collison we conclude that the general risk assessment was inadequate. No adequate assessment had been made of the effects of pollution relating to environmental damage.”

Mr Smith submits that section 217(3), like section 85(1), creates an offence of strict liability, and that the two sections are not mutually exclusive. It is perfectly possible for a defendant to be prosecuted under section 217(3) who could also be prosecuted under section 85(1), but section 217(3) is valuable because it clarifies the position of a potential defendant whose actions cannot be said to be immediately causative of the polluting event. The same can be said of section 217(1) and (2).

None of the authorities to which our attention has been invited were decided in relation to section 217(3), or its predecessor section 121(1) of the Water Act 1989, but they are of some assistance as to the evolving approach taken by the courts in relation to this area of the law.

In Neath RDC v Williams [1951] 1 KB 115 a watercourse got silted up by natural causes and a local authority served an abatement notice on the landowner under the Public Health Act 1936. He failed to respond, and when prosecuted relied on a proviso which excluded from liability “any person other than the person by whose act or default the nuisance arises or continues.” In this court Lord Goddard CJ said at 126 –

“I cannot construe the word ‘default’ here in the way in which we have been asked to construe it by the Rural District Council. I do not think that in this case ‘default’ could mean merely doing nothing, unless an obligation to do something were imposed by the Act. There is no act of the defendants which caused the obstruction either to arise or continue. I can well understand that there might be a case where it might be said that a person who failed to do something which he ought to have done, such for instance as failing to prevent obstructive matter from going into a river from his own premises, had caused obstruction by his default. In the present case, on the facts found by the justices, there is nothing to show that the defendants did anything which caused this obstruction to arise or to continue; nor do I think that there is anything which can properly be called a default on their part.”

Mr Gordon submits that in the present case the appellants, like the landowner in Neath, were not under any obligation to do anything.

Tesco Ltd v Nattrass [1972] AC 153 concerned a prosecution under the Trade Descriptions Act 1968, and whether employees remained liable when proper instructions had been given to those in charge of a local store. Sections 23 and 24(1) of the 1968 Act so far as material provided as follows –

“23(1) Where the commission by any person of an offence under this Act is due to the act or default of some other person that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this section whether or not proceedings are taken against the first mentioned person.

24(1) In any proceedings for any offence under this Act it shall .. be a defence for the person charged to prove –

(a)

that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control ….”

The similarity between the wording of section 23 and the wording later to be found in section 217(3) of the 1991 Act is obvious. As to sections 23 and 24, Lord Diplock said in Tesco at 196 G –

“In the expression ‘act or default’ in section 23 and in paragraph (a) of section 24(1) the word ‘act’ is wide enough to include any physical act of the other person which is causative of the offence. But the use of the word ‘default’ instead of the neutral expression ‘omission’ connotes a failure to act which constitutes a breach of a legal duty to act. A legal duty to act may arise independently of any contract or it may be a duty owed to another person arising out of a contract with him.”

Mr Gordon again draws our attention to the need for a legal duty to act, and that requirement is also referred to in Alphacell Ltd v Woodward (supra). In that case the appellants had water settling tanks beside a river, and there were pumps to prevent any overflow, but the pumps were not adequately maintained, so an overflow occurred. They were charged with and convicted of causing polluting matter to enter the river contrary to section 2(1) of the Rivers (Prevention of Pollution) Act 1951. They contended unsuccessfully that they should have been acquitted because the over flow had taken place without their knowledge and without negligence on their part. The House of Lords held that there was no reason to read into the statute the word “knowingly” before the word “causes”, nor was it necessary for the prosecutor to establish negligence.

I pass over Price v Cromack [1975] 1 WLR 988 because in the Empress case (supra) Price v Cromac was said to have been wrongly decided, but it needs to be mentioned because it was referred to by Lloyd LJ in Welsh Water Authority v Williams Motors 7^th November 1988 unreported, a decision on which Mr Gordon relied. Oil was supplied to Williams Motors by Autobrec Oils and there was spillage from an offset fuel pipe out of sight of the delivery driver. Some of the spilt oil got into the storm drainage, and thus into a canal. Williams Motors were charged under section 32(1)(a) of the Control of Pollution Act 1974 with causing or knowingly permitting the discharge into relevant waters. The magistrates were not satisfied that they had caused the pollution, and this court agreed with them. Having referred to Alphacell Lloyd LJ said at page 2 of the transcript –

“So the question in the present case is whether the respondents did some positive act in the chain of events in leading to the result.”

What seems to me to be significant about the Welsh Water case is that apparently there was nothing to suggest to Williams Motors that Autobrec might not be able to deliver the fuel safely. So it is not surprising that Lloyd LJ was unable to find any positive act by Williams Motors which could be said to have caused the pollution. In the present case the justices identified a number of defaults, as can be seen from paragraph 18 of this judgment.

The last authority to which I need refer in relation to this aspect of the case is Empress Car Co. That case concerned a diesel tank which was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that diesel flowed into the drum until it overflowed. The appellants were convicted of causing polluting matter to enter controlled waters contrary to section 85(1) of the 1991 Act, and their appeals failed. At the end of his speech Lord Hoffmann summarised the position thus at page 35 –

“(1)

Justices dealing with prosecutions for ‘causing’ pollution under section 85(1) should first require the prosecution to identify what it says the defendant did to cause the pollution. If the defendant cannot be said to have done anything at all, the prosecution must fail: the defendant may have ‘knowingly permitted’ pollution but cannot have caused it.

(2)

The prosecution need not prove that the defendant did something which was the immediate cause of the pollution: maintaining tanks, lagoons or sewage systems full of noxious liquids is doing something, even if the immediate cause of the pollution was lack of maintenance, a natural event or the act of a third party.

(3)

When the prosecution has identified something which the defendant did, the justices must decide whether it caused the pollution. They should not be diverted by questions like ‘what was the cause of the pollution?’ Or ‘did something else cause the pollution? Because to say that something else caused the pollution (like brambles clogging the pumps or vandalism by third parties) is not inconsistent with the defendant having caused it as well.

(4)

If the defendant did something which produced a situation in which the polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party or a natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the defendant’s acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary it will be open to the justices to hold that the defendant did not cause the pollution.

(5)

The distinction between ordinary and extraordinary is one of fact and degree to which the justices must apply their common sense and knowledge of what happens in the area.”

Mr Smith submitted that in the light of the decision in the Empress case the Welsh Water case would not today be decided in the same way. I do not find it necessary to go that far. To my mind it is sufficient to say that in order to establish a breach of section 217(3) in the present case the prosecutor had to show that Pardy’s contravention of section 85(1) was due to an act or default of Express Dairies. The prosecutor did point to matters which it contended could properly be described as acts or defaults of Express. Mr Gordon submits that they could not properly be so described because Express was under no obligation to act. I disagree. Section 85(1) requires every person not to cause or knowingly permit polluting matter to enter controlled waters. The source of the obligation is statutory. It is not to be found in the law of tort. If a landowner, such as Express, is going to permit an operation on his land which gives rise to a risk of pollution then, as it seems to me, in order not to fall foul of section 85(1) he must carry out a risk assessment and respond to what that assessment reveals. Otherwise if pollution does occur it may be impossible for him to say that the offence committed by those using his land was not due to one or more of his acts or defaults. That is not how the justices expressed themselves in this case because they did not have to deal with the argument presented to us, but having regard to their findings of fact I have no doubt that their answer to the first issue was in the affirmative. Indeed I would find it surprising were they to have answered the question imposed by the first issue in any other way.

In relation to this issue Mr Gordon submits that despite the obvious discolouration observed by Mr Folkes-Skinner and illustrated by the photographs, and the changes revealed by bio chemical analysis, Pardy’s Dairies did not in fact contravene section 85(1), and thus there can have been no contravention by Express of section 217(3) because, as the justices found, the cream which entered the brook did no harm. So I return, as promised in paragraph 11(4) of this judgment, to what the magistrates actually said in paragraph 6(v) of the case stated. It reads –

“From the evidence given we are of the opinion that the cream that entered the Hewell Brook had a polluting effect on that Brook.

We find that there was no harm to the water but following the case of Dovermoss it is not necessary to establish actual harm.

From the evidence given of Miss Sanderson and Richard Yates that they had correctly carried out the analysis of the samples and from the Environmental Agency’s expert witness Paul Williams. We conclude that and accept his interpretation, explanation and opinion of the analysis of the samples including the increased BOD levels increased levels of suspended solids and the increased levels of ammoniacal nitrogen.

We were of the opinion that these findings had the polluting effect of cream on a water course.

We were of the opinion that the results from the samples show that the substances within the samples had the ability to use oxygen from the water and that this could result in harm. We accept the evidence that BOD is a good indicator of pollution.

From the observations and photographs of Mr Folkes-Skinner showing clearly the discolouration of Hewell Brook we conclude that this is also an indicator of pollution.”

That passage could perhaps be better expressed, but to my mind the meaning is clear. The justices were not satisfied that the entry of cream into the brook had caused harm. There were for example, no dead fish and no evidence that the intrusive liquid was toxic, but the scientific evidence demonstrated the potential harm, and the polluting effect, which was also evident from the observations and photographs of Mr Folkes-Skinner. That seems to me to be a position which the justices were entitled to adopt, and if my understanding of the position is correct there is simply no factual basis for the submissions which Mr Gordon advanced in relation to issue 2.

However it is only right that I should set out my understanding of the argument which he advances upon the basis that the cream which reached the brook did no harm. As he says, the words “polluting matter” which appear in section 85(1) are not defined in the 1991 Act, and he submits that matter will only be polluting if it does some harm. In support of that submission he invites our attention to section 1 of the Environmental Protection Act 1990, which so far as relevant reads –

“(3)

‘Pollution of the Environment’ means pollution of the environment due to the release (into any environmental medium) from any process of substances which are capable of causing harm to man or any other living organisms supported by the environment.

(4)

‘Harm’ means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes offence caused to any of his senses or harm to his property; and ‘harmless’ has a corresponding meaning.”

Those definitions do, as he says, appear in a statement dealing with the same area of law, but of course even if they applied they would be of no assistance to Mr Gordon if I have properly understood the justices findings of fact. Mr Gordon also drew our attention to the second definition of “pollute” in the current edition of the Shorter Oxford English Dictionary, namely –

“To make physically impure, foul or filthy; to dirty, stain, taint, befoul spec. to contaminate (the environment, atmosphere, etc) with harmful or objectionable substances.”

But, as Mr Gordon recognises, there is a decision of the Court of Appeal Criminal Division in relation to the question of whether for the purposes of section 85(1) it is necessary to show that polluting matter causes harm, namely Dovermoss (supra). In that case slurry had been applied by the defendant to adjacent fields. The blockage of a small stream caused water to run through the slurry and so raised its ammonia content. But not beyond levels permitted by statute. One of the defences raised at trial and in the Court of Appeal was that because the increase was not shown to be harmful the water had not been polluted. As to that Stuart Smith LJ, giving the judgment of the court, said at 265 –

“(counsel) submits that the prosecution have to show that some harm has resulted to the water, such that it has a harmful effect on animal or plant life affected by the water or those who use it. Since the ammonia levels were lower than those permitted by the regulations, no such harmful effect was shown. We do not accept this submission. ‘Pollute’, ‘pollutant’ and ‘pollution’ are ordinary English words. The relevant definition of ‘pollute’ in the Oxford English Dictionary is: ‘to make physically impure, foul or filthy; to dirty, stain, taint, befoul’. It is quite clear that it is intended to have a different meaning from ‘poisonous or noxious matter’ since these words appear in the section. ‘Noxious’ means harmful. We see no reason why the dictionary definition should not be adopted. It will, of course, be a question of fact and degree whether the matter does pollute the waters. Obviously a very small quantity poured into a large watercourse may have no polluting effect at all. It is so diluted that it does not make it impure, foul or filthy. That is a question for the jury.

It appears to us that this case could equally well have been charged as a noxious matter since it is obvious that it was likely to cause harm. It is not necessary in such a case to establish actual harm. The likelihood or capability of causing harm to animal or farm life or to those who use the water is sufficient.”

As Mr Gordon points out the appeal succeeded on a different ground, and so he contends that we are not bound by what was said in relation to section 85(1). He further submits that Dovermoss can be distinguished on the basis that in that case, unlike in the present case, there was no positive finding that the allegedly polluting matter did not cause any harm.

Even if strictly speaking we are not bound to follow what was said by the court in Dovermoss I see no good reason to take a different view of this legislation. I recognise that section 85(1) creates a criminal offence, and maybe the concentration should be upon the allegedly polluting matter rather than upon the water which receives it, but, as Stuart Smith LJ said, section 85(1) is worded in such a way as to make it clear that polluting matter need not be either poisonous or noxious. It is sufficient if it, for example, stains or taints as this cream did, but the cream also, as the Justices found, had a potential for harm. In paragraph 2(iii) of the case stated they referred to Dovermoss and to the evidence before them, and that paragraph contains this sentence –

“We believe the cream which entered the brook had a polluting effect on that brook.”

In my judgment the justices were clearly entitled to reach that conclusion, which disposes of the question posed in issue 2.

I return now to the five questions in the case stated. Some of them raised issues which are not pursued in this court, but in the light of the submissions made to us I see no reason why each of the questions asked should not be answered in the affirmative, and I would therefore dismiss this appeal.

I agree.